ROL[Rule of Law] emerges broadly, as a "thin" notion entailing procedural restraints on forms of sovereign power and governmental conduct, which may also authorize Holocaustian practices of politics and as a "thick" conception can also involve the theories about the "good", "right", and "just". To get a proper understanding of the infamous term ‘rule of law’, it is quintessential to define the terms ‘rule’ and ‘law’. ‘Rule’ connotes a standard by which a judge conducts, or on grounds which formulates the base of one’s own conduct. As put by Professor Hart, the concept of the term ‘rule’ lies on the distinction between ‘internal’ and ‘external’ point of view. The ‘external’ point of view is an observation of an outsider who describes the behavior as it can be clearly visible. The ‘internal’ point of view is a correlation between the behavior and the prescription pattern of how a person ‘internalises’ the feeling or the fact about how others behave. The correlation between behavior and rule is that an acceptance of behavior as a standard may infer to the acceptance of rule. There are many rules in society prescribing how people ought to behave, but not all of them are internalised as law. Hans Kelsen answers the question "What is law ?" with two interlocking definitions: firstly, the law is a conditional stipulation of sanctions, and secondly the law is a system of rules, ultimately derived from a "basic norm”. The law is also governed as a command or a system of rules enumerated from a ‘legal system’ or a sovereign.
When the Rule of Law disappears, we are ruled by the whims of men. The original meaning of the phrase “Rule of Law” in English law was that no individual should be "above" the law- meaning that governmental actions should be accountable to some set of predetermined standards. The predetermined standards against which governmental actions are to be measured are contained in constitutions, statutes, administrative regulations, and common law precedents, which may be categorized further as ‘law’. Indian ROL stands normatively not just as a sword against State domination, but also as a shield that empowers a “progressive” state intervention in a civil society.
The principle of ROL has been reiterated in numerous cases in India. It is one of the most fundamental basic principles of jurisprudence that exists and should be followed as a check against arbitrary power in every manner and sense. The rule of law is a celebrated, historic concept, the meaning of which is still not clear and is interpreted differently by different nations and thus needs a multidimensional aspect to understand its concept in entirety.
This article goes into detail about rule of law in context with the origin and the development of rule of law along with its shortcomings.
Origin of rule of law in India
When India acquired their independence in the year 1947, a very crucial question came into force which was that- What were the core constitutional or legal principles India would be governed by? India, conceptualized in whichever way by others, was by no means a tabula rasa, it being regarded as the oldest civilization has a long ravishing history to learn from. Right from the very early days of the working of the Constitution, respect for the rule of law had come to be seen as the most important and beneficial heritage of the British period. It was the British who had introduced the ‘rule of law’ in India. And later being recognized as a crucial concept was adopted by our constitution-makers as well in complete force. The rule of law, as opposed to men, is considered to be the most basic value of our constitution which is also clearly enshrined in the preamble of the constitution.
Development of rule of law in India
Many jurists have attempted to define the concrete definition of rule of law but there is no conclusive definition of it as such. The most acceptable explanation of the term is given by Dicey in his three principles of rule of law. First, "the absolute supremacy of regular law as opposed to the influence of arbitrary power". Second, "equality before the law, or the equal subjection of all classes to the ordinary law of the land which is administered by the ordinary law courts". And lastly, in a more specific English mode, it expresses the fact that "the law of the constitution is not the source but the consequence of the rights of individuals”, which further denotes that the principles of private law have been by the action of the courts and Parliament, extended so as to determine the position of the Crown and of its servants and this in effect states that the ‘constitution is the result of the ordinary law of the land’. As the constitution is a transformative document in nature, the law itself is a dynamic concept which is why it becomes quintessential to see its development as a concept in India.
The rule of law that is given by Dicey is quite evident in many of the provisions in the statues. The preamble entails many of the crucial aspects of rule of law. It further states that the people have resolved to secure for all of India’s citizens including (i) social, economic and political justice; (ii) liberty of thought, expression, belief, faith and worship; (iii) equality of status and of opportunity and to promote among them all, and lastly, (iv) fraternity, assuring the dignity of the individual and the unity and integrity of the nation. The constitution of India provides Article 14 that ensures equality before the law and equal protection before the law. Article 22 is an action against wrongful detention. Article 21 ensures procedural fairness.
These were just a few aspects of the Indian statues in coherence with the rule of law. The preamble is based strictly on the lines of rule of law, thus any action that is against the rule of law is void in itself in its nature.
To know the true essence of rule of law, it is quintessential to see the implementation of it in extraordinary times. When the emergency of 1975 was proclaimed by Fakhruddin Ali Ahmed, a lot of questions were raised in context with rule of law. Questions in lieu such as “What happens when the state, enjoying a monopoly over coercion, suspends the regular constitution and decides to express its force and might, if its own security is under threat?”
“Is the rule of law (in context with India) strong enough to test this challenge?”
ADM JABALPUR is one case that should be referred in such instances. In that case, it was a dark hour for the Indian judiciary as four out of five judges held that courts cannot be approached for a violation of article 14, 21 and 22 as per the presidential order, hence parties have no locus standi. Though, this case is famous due to the dissent given by Justice Khanna, in which he specifically says that article 21 has a wider scope and cannot be held as a sole repository of right to life and personal liberty. Justice Khanna under Article 372 enforced rule of law as an independent constitutional principle. The section that opposed this belief, argued that this case has to be understood in a wider sense and merely granting an exception does not disqualify the rule of law. Crux of it claimed that “The rule proves nothing; the exception proves everything.” This confirms not only the rule but also its existence, which is derived only from the exception. But there shall be a rock-solid line between legality and illegality. This order in the state of exception is of a different nature as the strict distinction between legality and illegality is not available for lawyers to work with, and yet while the law recedes, the state remains.
The Indian judiciary has upheld the rule of law in numerous cases and reinstituted the will of the constitution-makers while upholding the spirit of the law. Rule of law is the antithesis of arbitrariness, which in true sense has come to be regarded as the mark of a free society. In our constitutional system, the central and most characteristic feature is the concept of the rule of law which in the present context refers to the authority of the law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court. In our country the rule of law prevails and our Constitution has guaranteed it by the provisions contained in Part III thereof as well as other provisions in other Parts. If a decision is taken without any principle or without any rule then it is regarded as unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. Whereas, it is essential if a man is not to be compelled to have recourse as a last resort to rebellion against tyranny and oppression, then in such cases human rights should be protected by the rule of law.
Thus, time and time again the rule of law has been given the utmost position in the Indian judiciary as a doctrine which stands as a guardian and the protector of the basic structure.
Problem with rule of law
When an in-depth analysis of the construction of rule as the law is taken into account, then the principle of rule of law is in question. Law in India is passed by people (emphasis added) from both the houses, signed by the president (a person) and enacted through the official gazette. In addition, the application and interpretation of the enacted law is done by the legal minds of judges (a person). Now, “when the construction is such that law is made by the people and enacted by people, how can we even say that there is a rule of law?”
Law is made by people in power, and in no way they would put real limitations on their power. The said limitations are merely a facade so that the people think it is the law that is in power but the truth of the matter is, it is not the law which is governing element here, however, it is the man who constructed the law and it is the man who is currently in power who has the capability to exercise this power.
The concept of rule of law is only limited to the ambit, that the law made by the people in power should be followed. Law does not distinguish between any people whatsoever; henceforth the law made by people in power is applicable to them as it is to that of a normal person (leaving out some special exceptions provided under the law).
Thus, it is proved in all possibilities and therefore forms a firm ground to state that the doctrine of rule of man is an integral part of rule of law which can never be separated.